The opinion of the court was delivered by: Getzendanner, District Judge.
MEMORANDUM OPINION AND ORDER
This habeas corpus proceeding is before the court on
respondent's motion to dismiss. For the reasons stated below,
the court grants respondent's motion. In addition, the court
denies as moot petitioner's pending motion to reconsider its
order of January 17, 1984, dismissing as a respondent the
Circuit Court of Cook County, Illinois.
In April 1977 petitioner Larry Reimnitz was convicted in the
Circuit Court of Cook County of murdering his wife, Linda
Reimnitz. She had been found strangled on January 16, 1975.
Central to the State's case against Reimnitz was a transcribed
inculpatory statement which he gave on August 25, 1975.
Reimnitz moved unsuccessfully for the suppression of this
statement (and of untranscribed statements given the same
day), and on appeal from his conviction he argued that it was
error not to suppress the statement. Reimnitz also argued on
appeal that it was error to admit evidence of a homosexual act
which Reimnitz performed upon a sleeping, unconsenting friend,
in early August 1975, seven months after his wife's death
(hereinafter the "Silver Lake" incident). The Illinois
Appellate Court reversed Reimnitz's conviction, holding that
evidence of the Silver Lake incident should not have been
admitted, since it had a prejudicial effect outweighing its
probative value. People v. Reimnitz, 72 Ill. App.3d 761, 29
Ill.Dec. 117, 391 N.E.2d 380 (1st Dist. 1979).
On remand, before a new trial judge, Reimnitz moved for
dismissal, arguing that the Double Jeopardy Clause barred
retrial. The general rule, of course, is that the Double
Jeopardy Clause does not bar retrial of a defendant who
successfully has appealed and obtained reversal of a
conviction. Tibbs v. Florida, 457 U.S. 31, 39-40, 102 S.Ct.
2211, 2217, 72 L.Ed.2d 652. Reimnitz raised two arguments to
avoid this general rule, one based on the introduction of
evidence of the Silver Lake incident, and the other based on
the introduction of his inculpatory statement. The trial court
granted Reimnitz's motion to dismiss, accepting his argument
based on evidence of the Silver Lake incident. The Illinois
Appellate Court reversed, addressing and rejecting both of
Reimnitz's arguments, and remanding for retrial. People v.
Reimnitz, 97 Ill. App.3d 946, 53 Ill.Dec. 265, 423 N.E.2d 934
(1st Dist.), cert. denied, 456 U.S. 906, 102 S.Ct. 1751, 72
L.Ed.2d 162 (1982).
Reimnitz now has petitioned this court for habeas corpus
relief, raising both of the double jeopardy arguments he
raised in the state courts. Reimnitz's petition alleges that
he is free on bail awaiting retrial. (Petition, ¶ 1.) He thus
is subject to the conditions of Ill.Stat.Ann. ch. 38, ¶
110-10(a) (Smith-Hurd Supp. 1983-84), and it seems clear that
he must be deemed to be in "custody," as is necessary to
support jurisdiction under 28 U.S.C. § 2241(c)(3). See Justices
of Boston Municipal Court v. Lydon, ___ U.S. ___, ___ _ ___,
104 S.Ct. 1805, 1809-10, 80 L.Ed.2d 311 (1984). It also appears
that Reimnitz's petition is subject to the requirements of
28 U.S.C. § 2254, which apply to petitions brought by persons in
custody pursuant to the judgment of a state court. Id. at 1810
& n. 3. The court already has held that Reimnitz has satisfied
the exhaustion requirement of § 2254(b). (Memorandum Opinion
and Order of 1/17/84.) The State voluntarily has delayed
Reimnitz's retrial, pending the outcome of this proceeding.
The record before the court has been supplemented to the
extent requested by Reimnitz. (See Reimnitz memo filed 3/5/84,
p. 2.) On January 23, 1984, with Reimnitz's agreement, the
court excused respondents from filing a transcript of
Reimnitz's trial and suppression hearing, and allowed
respondents to file instead the abstract prepared by Reimnitz
for use on direct appeal from his conviction. The parties have
not discussed by what standards the court should decide
respondents' motion to dismiss, but the court believes that
the motion must be granted even by summary judgment standards;
the record before the court indicates that there is no genuine
issue as to any material fact.
Reimnitz argues that introduction of evidence of the Silver
Lake incident was prosecutorial misconduct or overreaching,
barring retrial after reversal on appeal. The court believes
that Reimnitz's argument is insufficient as a matter of law,
and the court also believes that the record does not
reveal any prosecutorial misconduct or overreaching.
The question raised by Reimnitz usually arises in the
context of an attempt to retry a defendant who successfully
has moved for a mistrial. In Oregon v. Kennedy, 456 U.S. 667,
102 S.Ct. 2083, 72 L.Ed.2d 416 (1982), the Supreme Court found
its prior decisions to be somewhat in disarray, and to clarify
this area of law the Court held:
Prosecutorial conduct that might be viewed as
harassment or overreaching, even if sufficient to
justify a mistrial on defendant's motion,
therefore, does not bar retrial absent intent on
the part of the prosecutor to subvert the
protections afforded by the Double Jeopardy
Clause. A defendant's motion for a mistrial
constitutes "a deliberate election on his part to
forgo his valued right to have his guilt or
innocence determined before the first trier of
fact." United States v. Scott, 437 U.S. 82, 93, 98
S.Ct. 2187, 2195, 57 L.Ed.2d 65 (1978). Where
prosecutorial error even of a degree sufficient to
warrant a mistrial has occurred, "[t]he important
consideration, for purposes of the Double Jeopardy
Clause, is that the defendant retain primary
control over the course to be followed in the event
of such error." United States v. Dinitz, supra,
424 U.S.,  at 609, 96 S.Ct.,  at 1080
[47 L.Ed.2d 267]. Only where the governmental
conduct in question is intended to "goad" the
defendant into moving for a mistrial may a
defendant raise the bar of Double Jeopardy to a
second trial after having succeeded in aborting the
first on his own motion.
Id. at 675-76, 102 S.Ct. at 2089.*fn1
The rule stated in Oregon v. Kennedy is an exception to the
general rule that a defendant may be retried after successfully
moving for a mistrial. It is not at all clear that there is any
comparable exception to the general rule that a defendant may
be retried after obtaining reversal of a conviction on appeal.
Although the question was not before the Court in Oregon v.
Kennedy, the Court seems clearly to have assumed that the
Double Jeopardy Clause does not bar retrial after appellate
reversal of a conviction is caused by prosecutorial misconduct,
despite some possible encroachment on the defendant's double
jeopardy rights. 456 U.S. at 676, 102 S.Ct. at 2089.
Respondents have cited Gully v. Kunzman, 592 F.2d 283 (6th
Cir.), cert. denied, 442 U.S. 924, 99 S.Ct. 2850, 61 L.Ed.2d
292 (1979), in which the Court stated:
[Defendant] argues that the State should be
barred from retrying him because its own
misconduct led to the reversal of his first
conviction. Even accepting that characterization
of the trial error which caused the appellate
reversal, it would not affect the State's right
to retry him. . . . His attempt to analogize his
situation to cases where retrial has followed a
mistrial provoked by prosecutorial misconduct is
unavailing. In such cases, retrial is disapproved
principally because the misconduct resulting in a
mistrial has deprived the defendant of "[the]
valued right to have his trial completed by a
particular tribunal." . . . [Defendant's] first
trial proceeded all the way to verdict, and,
consequently, he fully enjoyed that right.
Id. at 289-90. It seems to the court that the reasoning of
Oregon v. Kennedy might in fact have some application to the
question of retrial after reversal of a conviction. A review of
the record demonstrates, however, that this case could not fall
within any such exception, if there is one, to the general rule
that the Double Jeopardy Clause does not bar retrial after a
defendant obtains appellate reversal of his conviction.
"Q. Directing your attention to the dinner hour, did you
have occasion to have dinner with your wife on that date?
Q And shortly after dinner what if anything did you have
occasion to do?
A I went to the den to make out a bank deposit.
A I had a couple of checks we were going to deposit.
Q While you were in the den was there a desk in the den?
Q While you were in the den what if anything occurred?
A I called Linda in to endorse the checks and she said she
wanted $20.00 and we were talking a little bit and she put her
arms around me.
Q Where was she in relationship to you then?
A She was sitting on the desk and then behind me. I was in
the desk chair.
Q So, she came up behind you and what did she do?
Q When you felt her kiss your ear did anything else happen?
A She put her arms around my neck.
Q Anything else? Did you feel the softness of her fur coat?
Q Did she say anything to you at the time?
A No, I don't remember her saying anything.
Q Did you say anything to her?
A I don't remember saying anything to her either. We sat
down on the floor, you know, hugging and kissing and fooling
Q Was that prelude, possibly to a sexual act?
A Yes, I remember pushing against her with my head and after
a while I ...